R v Seiden - [2009] VSCA 283

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 783 of 2009

THE QUEEN
	v
LOUIS DANIEL SEIDEN

---

JUDGES:	WEINBERG and MANDIE JJA and COGHLAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 December 2009
DATE OF JUDGMENT:	3 December 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 283
JUDGMENT APPEALED FROM:	R v Seiden (Unreported, County Court of Victoria, Judge Pullen, 20 August 2009)

---

CRIMINAL LAW – Sentence – Appellant pleaded guilty to charges of intentionally causing serious injury, affray and theft – Appeal on grounds that sentencing judge gave insufficient weight to the appellant’s psychiatric condition (Asperger’s Syndrome) and that sentences manifestly excessive - Crown conceded theft sentences manifestly excessive – Appeal allowed – Appellant re-sentenced.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G J C Silbert SC	Mr C Hyland, Solicitor for Public Prosecutions
For the Appellant	Mr R F Edney	Matthew White & Assoc

WEINBERG JA:

I shall ask Mandie JA to deliver the first judgment in this matter.

MANDIE JA:

In relation to incidents which occurred on 25 October 2008, the appellant was charged the next day with a number of offences to which he pleaded guilty at a second committal mention on 20 February 2009. A plea in mitigation of sentence was heard before the County Court on 12 August 2009 and on 20 August 2009 the appellant was convicted and sentenced on the following counts:

1.Intentionally causing serious injury to another person (s 16 Crimes Act 1958 – maximum penalty: 20 years’ imprisonment) – 2 years’ imprisonment (base sentence).
2.Affray (common law offence – maximum penalty under s 320 Crimes Act 1958: 5 years’ imprisonment) – 10 months’ imprisonment with 4 months to be served cumulatively on count 1.
3.Theft (s 74(1) Crimes Act 1958 – maximum penalty: 10 years’ imprisonment) – 6 months’ imprisonment with 2 months to be served cumulatively on count 1.
4.Theft (s 74(1) Crimes Act 1958 – maximum penalty: 10 years’ imprisonment) – 6 months’ imprisonment with 2 months to be served cumulatively on count 1.

The total effective sentence was thus 2 years 8 months’ imprisonment and 14 months was fixed as a non-parole period.

The appellant was granted leave to appeal on 13 November 2009 and the full statement of grounds of appeal is as follows:

1.The learned sentencing judge failed to give sufficient weight to the appellant’s psychiatric condition and its relevance to the:
(a) moral culpability of the appellant;
(b)moderation of the application of principles of general and specific deterrence;

(c)appellant’s experience of imprisonment being more onerous;
(d)risk that imprisonment would pose to the appellant’s mental health.

2.The individual sentences and the total effective sentence are manifestly excessive.

The Crown has conceded error in respect of counts 3 and 4 - rightly, I think, because the sentences of 6 months each in respect of two thefts of items of very small value were in my opinion manifestly excessive. As a result of this concession, it is necessary for the appellant to be re-sentenced…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Seiden

Details

AGLC: R v Seiden [2009] VSCA 283
Case: [2009] VSCA 283
Decision Date: 3 December 2009

CaseChat Overview and Summary

The matter of R v Seiden involved the appellant, who had pleaded guilty to various charges including intentionally causing serious injury, affray, and theft. The sentencing judge imposed a substantial custodial sentence, which the appellant sought to appeal. The appellant argued that the sentencing judge had not adequately taken into account his psychiatric condition, specifically Asperger's Syndrome, and that the overall sentence was manifestly excessive. The Crown conceded that the sentences for the theft charges were indeed excessive.

The primary legal issues before the court were whether the sentencing judge had erred by failing to sufficiently consider the appellant's psychiatric condition and whether the sentence imposed was manifestly excessive. The court examined the sentencing principles applicable to the appellant's circumstances, including the need to consider all relevant mitigating factors, such as his psychiatric condition, and to ensure that the sentence was proportionate to the seriousness of the offending.

In its judgment, the court found that the sentencing judge had indeed failed to adequately consider the appellant's psychiatric condition, which was a significant mitigating factor. Additionally, the court concluded that the overall sentence was manifestly excessive, particularly in light of the Crown's concession regarding the theft sentences. As a result, the appeal was allowed, and the appellant was re-sentenced by the court.

Orders